All posts tagged CEPA

The State Legislature partially codified the Pierce claim when it passed the Conscientious Employee Protection Act, N.J.S.A. 34:19-1, et seq. in 1986. Barratt v. Cushman & Wakefield of New Jersey, Inc., 144 N.J. 120, 126-27 (1996); Young v. Schering Corp., 141 N.J. 16, 26-27 (1996). While the Legislature codified the common law retaliation Pierce claims, it did not abolish common law claims. Id.

However, CEPA has a provision that requires that a plaintiff cannot pursue another retaliation claim if that person is pursuing a CEPA action. N.J.S.A. 34:19-8. However, both CEPA and Pierce actions may be pled in the Complaint as long as one cause of action is dropped before trial.

The Appellate Division directly addressed this issue in Maw v. Advanced Clinical Communications, Inc., 359 N.J. Super. 420, 440-41 (N.J. Super. 2003), rev’d on other grounds, 179 N.J. 43 (2004). In Maw, the defendant had also tried to dismiss the Plaintiff’s Pierce claim, making the same arguments advanced by Orkin. The Appellate Division held that it is inappropriate to dismiss the Pierce claim until the Plaintiff has had an opportunity to take discovery, The Court explained:

Although none of the cases cited specifically address at what point the election must be made, Young is instructive. The Court found the election needed to be made “once a CEPA claim is ‘instituted.’ ” Id. at 29. However, in discussing the meaning of “institution of an action,” the Court noted that “[t]he meaning of ‘institution of an action’ could conceivably contemplate an election of remedies with restrictions in which the election is not considered to have been made until discovery is complete or the time of a pretrial conference contemplated by Rule 4:25-1. Another question is whether the statutory waiver is applicable if the CEPA claim is withdrawn or otherwise concluded prior to judgment on the merits.” Id. at 32. We take this language to mean that before electing remedies, a plaintiff should have an opportunity to complete discovery. Only after gaining access to all of the facts, will a plaintiff be in a position to make a knowing and meaningful election.

Maw, 359 N.J. Super. at 441. (Emphasis added)

Justices Zazzali and Long of the New Jersey Supreme Court also gave guidance on this issue in their thoughtfully reasoned dissent. Although a plaintiff who pursues a CEPA claim must forego a common-law claim, it would be unjust to force a party into making that decision at the pleading stage of the proceedings before a court has determined whether either action may lie. Maw, 139 N.J. at 450, dissent at FN1.

2. Differences between Pierce and CEPA claims

o The statute of limitations for CEPA is one year, N.J.S.A. 34:19-5. The statute of limitations for Pierce claims is two years for tort claims. Montells v. Haynes, 133 N.J. 282 (1993) (holding that common law tort claims are governed by two-year statute). The statute of limitations for Pierce claims is six years for contract claims. Pierce, 84 N.J. at 72.

o Because Pierce claims are more congruous with the common law retaliation claims of other states, Pierce claims will be recognized in some situations involving interstate claims, whereas CEPA claims may not. Seee.g.Ballinger v. Delaware River Port Authority, 172 N.J. 586 (2002).

o Attorneys fees are available under CEPA (NJSA 34:19-5e), but are not available under Pierce unless the claim is brought for retaliatory termination taken under color of law (Civil Rights Act. NJSA 10:6-2.).

o The necessity of prior complaints.

To pursue a CEPA claim, there is a statutory requirement that before complaining to an outside agency, the employee must first make an internal complaint, unless the employee is reasonably certain that one of more supervisors already know about the problem, or the employee reasonably fears physical harm or that the situation is emergent. N.J.S.A. 34:19-4. There is no requirement of a complaint to an outside agency on part (c) claims, see supraAbbamont v. Piscataway Twp. Bd. of Ed., 136 N.J. 28 (1994); Higgins v. Pascack Valley Hosp., 158 NJ 404 (1999); Roach v. TRW, 164 N.J. 598 (2000); Gerard v. Camden Co. Health Services, 348 N.J. Super. 516 (App. Div. 2002), certif. denied 174 N.J. 40 (2002).

To pursue a Pierce claim, there is some confusion as to whether there is a requirement for a complaint to an outside agency. The confusion has arisen as a result of incorrect dictum contained in Young v. Schering Corp., 141 N.J. 16, 27 (1995). The Appellate Division in Young had held that an outside complaint is necessary, 275 N.J. Super. 221, 234-35 (App. Div. 1994), and relied upon a partial sentence from House v. Carter-Wallace, Inc., 232 N.J.Super. 42, 49, 556 A.2d 353 (App.Div.), certif. denied, 117 N.J. 154, 564 A.2d 874 (1989). The complete sentence from House states:

However, no New Jersey case has recognized a claim for wrongful discharge based solely upon an employee’s internal complaints about a corporate decision, where the employee has failed to bring the alleged violation of public policy to any governmental or other outside authority or to take other effective action in opposition to the policy. (Emphasis added).

On February 6, 2006, Federal Judge Greenaway, in Badrinauth v. Metlife Corp., Slip Copy, 2006 WL 288098 (D.N.J. 2006), rejected the defendant’s argument that NJ has, in effect, a per se rule requiring that an actual report to an external authority is a predicate to maintaining an action for wrongful termination under Pierce. The Appellate Division is currently addressing this issue head on in the case of Tartaglia v. PaineWebber, A-4412-03-T3.

o Pierce claims have been recognized in situations where a termination is in violation of public policy, even where there is no complaint or refusal to participate in unlawful activities.

o Hennessey v. Coastal Eagle Point Oil Co., 129 N.J. 81, 92, 93 (1992) – employee may state a Pierce claim if terminated for refusing a random drug test, where the employer does not have a legitimate reason to require such a test.

o It is possible to claim that an employee who is discharged for no reason and then must defend a malicious criminal proceeding instituted by her employer ma state a Pierce claim. SeeGiudice v. Drew Chem. Corp., 210 N.J.Super. 32, 36, 509 A.2d 200 (App.Div.), certif. denied, 104 N.J. 465, 517 A.2d 448, 449 (1986), but not have a cause of action when “merely” victimized by similar conduct. (The Pierce claim was dismissed on “waiver” grounds, as there was also a CEPA and malicious prosecution claim which subsumed the Pierce claim.).

3. No Waiver of claims requiring different elements

The waiver or exclusivity provision of CEPA only extends to claims that require a finding of retaliatory conduct that is actionable under CEPA. The waiver exception does not apply to those causes of action that are substantially independent of the CEPA claim. Young v. Schering Corp., 141 N.J. 16, 29 (1996).

The Attorney General has the right to pursue a constitutional or retaliation cause of action against any person whether of not acting under color of law. The statute also creates an analogous state version of a Section 1983 claim. Someone who prevails in this case obtains attorneys’ fees which is provided in the statute.

The elements of this statute are as follows:

a. If a person, whether or not acting under color of law, subjects or causes to be subjected any other person to the deprivation of any substantive due process or equal protection rights, privileges or immunities secured by the Constitution or laws of the United States, or any substantive rights, privileges or immunities secured by the Constitution or laws of this State, the Attorney General may bring a civil action for damages and for injunctive or other appropriate relief. The civil action shall be brought in the name of the State and may be brought on behalf of the injured party. If the Attorney General proceeds with and prevails in an action brought pursuant to this subsection, the court shall order the distribution of any award of damages to the injured party and shall award reasonable attorney’s fees and costs to the Attorney General. The penalty provided in subsection e. of this section shall be applicable to a violation of this subsection.

b. If a person, whether or not acting under color of law, interferes or attempts to interfere by threats, intimidation or coercion with the exercise or enjoyment by any other person of any substantive due process or equal protection rights, privileges or immunities secured by the Constitution or laws of the United States, or any substantive rights, privileges or immunities secured by the Constitution or laws of this State, the Attorney General may bring a civil action for damages and for injunctive or other appropriate relief. The civil action shall be brought in the name of the State and may be brought on behalf of the injured party. If the Attorney General proceeds with and prevails in an action brought pursuant to this subsection, the court shall order the distribution of any award of damages to the injured party and shall award reasonable attorney’s fees and costs to the Attorney General. The penalty provided in subsection e. of this section shall be applicable to a violation of this subsection.

c. Any person who has been deprived of any substantive due process or equal protection rights, privileges or immunities secured by the Constitution or laws of the United States, or any substantive rights, privileges or immunities secured by the Constitution or laws of this State, or whose exercise or enjoyment of those substantive rights, privileges or immunities has been interfered with or attempted to be interfered with, by threats, intimidation or coercion by a person acting under color of law, may bring a civil action for damages and for injunctive or other appropriate relief. The penalty provided in subsection e. of this section shall be applicable to a violation of this subsection.

d. An action brought pursuant to this act may be filed in Superior Court. Upon application of any party, a jury trial shall be directed.

e. Any person who deprives, interferes or attempts to interfere by threats, intimidation or coercion with the exercise or enjoyment by any other person of any substantive due process or equal protection rights, privileges or immunities secured by the Constitution or laws of the United States, or any substantive rights, privileges or immunities secured by the Constitution or laws of this State is liable for a civil penalty for each violation. The court or jury, as the case may be, shall determine the appropriate amount of the penalty. Any money collected by the court in payment of a civil penalty shall be conveyed to the State Treasurer for deposit into the State General Fund.

f. In addition to any damages, civil penalty, injunction or other appropriate relief awarded in an action brought pursuant to subsection c. of this section, the court may award the prevailing party reasonable attorney’s fees and costs.

Section 1983 claims pertain to retaliation that a person might experience for exercising constitutional rights against persons acting under color of law. A major difference between §1983 and CEPA has been that CEPA traditionally has only protected employees while §1983 protects “all persons” including independent contractors. This has now changed with the opinion in D’Annunzio v. Prudential Ins. Co. of America, — A.2d —-, 2005 WL 3789960 (App. Div. 2006). See infra.

One method of asserting a CEPA claim, is to engage in whistleblowing activity of the company engaging in activity that violates public policy. The question that is often presented in these instances, is whether or not the activity violates public policy. Thus, the courts examine various instances to opine as to what constitutes a violation of public policy.

The New Jersey Supreme Court defined a common law retaliation cause of action in the seminal case of Pierce v. Ortho Pharmaceutical Corp., 84 N.J. 58, 72 (1980). In this case, the court ruled that an employee has a cause of action for wrongful discharge when the discharge is contrary to a clear mandate of public policy. The sources of public policy include legislation; administrative rules, regulations or decisions; and judicial decisions. In certain instances, a professional code of ethics may contain an expression of public policy. However, not all such sources express a clear mandate of public policy. For example, a code of ethics designed to serve only the interests of a profession or an administrative regulation concerned with technical matters probably would not be sufficient. Absent legislation, the judiciary must define the cause of action in case-by-case determinations.

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iii. The Public interest is at issue

The essence of a CEPA claim should revolve around an issue that touches the public and not just the individual plaintiff. Mehlman v. Mobil Oil Corp., 153 N.J. 163, 187-88 (1998). At its core, the legislative intent of CEPA is to protect from retaliatory discharge, those employees who, “believing that the public interest overrides the interest of the organization [they] serve[ ], publicly ‘blow[ ] the whistle’ [because] the organization is involved in corrupt, illegal, fraudulent or harmful activity.” Ralph Nader et al., Whistleblowing: The Report of the Conference on Professional Responsibility (1972). To discern such a violation, you should look generally to the federal and state constitutions, statutes, administrative rules and decisions, judicial decisions, and professional codes of ethics to inform our determination whether specific corrupt, illegal, fraudulent or harmful activity violates a clear mandate of public policy. The guiding principle is that the offensive activity must pose a threat of public harm and not merely pose a private harm or a harm solely to the plaintiff.

In the recent case of Maw v. Advanced Clinical Communications, Inc., 179 N.J. 439, 444-45 (2004), the court took a hard look at whether being discharged for refusing to sign a restrictive covenant agreement could constitute a violation of the law. The court first found that restrictive covenant agreements are valid in New Jersey although they may be overreaching. The court specifically addressed the phrase, “clear mandate of public policy” as a section 3c(3) CEPA violation. The court found that a public policy expressed in the form of a statute, rule or regulation promulgated pursuant to law, is not what was meant under Section 3c(3). The Court found that this type of restrictive interpretation would reduce N.J.S.A. 34:19-3c(1) (Section 3c(1)) to mere surplusage, since it employs those legal precepts as a frame of reference for evaluating an employer’s conduct… A “clear mandate” of public policy suggests an analog to a constitutional provision, statute, and rule or regulation promulgated pursuant to law such that, under Section 3c(3), there should be a high degree of public certitude in respect to acceptable versus unacceptable conduct… The legislative approach vis-à-vis a “clear” mandate of public policy bespeaks a desire not to have CEPA actions devolve into arguments between employees and employers over what is, and is not, correct public policy. Such an approach also fits with the legislative requirement of a “mandate” as opposed to a less rigorous standard for the type of public policy that is implicated.

iv. A summary of what constitutes public policy

Code of Ethics: Hippocratic Oath is not a source of public policy – Pierce v. Ortho., supra

Society of Toxicology’s Code of Ethics can be public policy. Mehlman v. Mobil Oil Corp. supra.

There have been a plethora of recent cases that define adverse actions in contradictory fashions. Like the analysis under the LAD, “adverse action” will often be decided on a case by case basis.

CEPA defines adverse action as discharge, suspension, demotion, or other adverse employment action taken against an employee in the terms and conditions of employment. It is this third category that lends to contradictory interpretation by the courts.

The definition of adverse action was narrowly construed by Judge Axelrad in the New Jersey Appellate Division in the case of Hancock v. Borough of Oaklyn, 347 N.J.Super. 350, 360, 790 A.2d 186, 193 (App.Div.2002). In Hancock, the Court found that an adverse action was an action that either impacted the employee’s “compensation or rank” or an action that is “virtually equivalent to discharge” in order to give rise to the level of a retaliatory action required for a CEPA claim. The court found that having to perform certain duties and go through disciplinary hearings, although “mildly unpleasant,” did not rise to the level of an adverse action. This analysis was followed in Borawski v. Henderson, 265 F. Supp. 2d 475 where the New Jersey District Court found that the denial of phone use and a possible lengthy suspension did not constitute an adverse action.

Subsequent cases expanded CEPA’s scope to allow that an adverse action could occur by looking at more than one discrete action. However, this still allowed for ambiguity and inconsistent results as to what actions rise to the level of an adverse action.

In a 2003 New Jersey Supreme Court case, the court ruled that adverse action may include many separate, but relatively minor, instances of behavior directed against an employee that may not be actionable individually, but that combine to make up a pattern of retaliatory conduct. Green v. Jersey City Bd. of Educ. ,177 N.J. 434, 448 (2003).

Similarly, in Guslavage v. City of Elizabeth, 2004 WL 3089743, the court defined adverse action broadly. In this case, a sergeant, in the Police Department, was transferred internally to a lesser unit, after engaging in CEPA protected activity. The court found that the transfer was an adverse action.

In Nardello v. Township of Voorhees, 277 N.J. Super. 428, the court found that a series of minor instances could constitute adverse action by considering the aggregate impact of each minor instance. See also Beasley v. Passaic County, 377 N.J. Super. 585 (App. Div. 2005) (“A pattern of conduct by an employer that adversely affects an employee’s terms and conditions of employment can qualify as retaliation under CEPA.”). See,Isetts v. Borough of Roseland, 2005 WL 2334363 (Law Div. 2005), (comprehensive analysis of adverse action in LAD and CEPA cases).

Thus, just when it appeared that the Courts were providing a broad interpretation of what constitutes an adverse employment action, the Appellate Division handed down a ruling that provided a narrow interpretation to what constituted an adverse employment action. Klein v. University of Medicine and Dentistry of New Jersey, 377 N.J.Super. 28 (App. Div. 2005). In this case, Dr. Klein lost clinical privileges and had to be supervised by another physician after engaging in CEPA protected activity. The court found that UMDNJ’s responses were not severe enough to constitute an adverse employment action. See alsoYurick v. State of N.J. (inadequate funding did not constitute an adverse action).

Thus, the issue of what constitutes an adverse action is still one that must be examined closely to survive summary judgment.

Prior to the very recent case of D’Annunzio v. Prudential Ins. Co. of America, — A.2d —-, 2005 WL 3789960 (App. Div. 2006), in most cases, independent contractors, were not covered under CEPA similar to the LAD. The Appellate Division expanded CEPA’s coverage to include not only common law employees, but also many independent contractors. The Court held that the definition of “employee” under CEPA is broader than the definition under the LAD, and rejected the analysis set forth in Pukowsky v. Caruso, 312 N.J.Super. 171, 711 A.2d 398 (App.Div.1998) The Court set forth a broad new test for determining whether a person is to be considered an “employee” for purposes of CEPA.

As a result, we hold that independent contractors are not necessarily excluded and that only the first (“the employer’s right to control the means and manner of the worker’s performance”), second (“the kind of occupation-supervised or unsupervised”) fourth (“who furnishes the equipment and workplace”) and seventh (“the manner of termination of the work relationship”) factors contained in Pukowsky, supra, 312 N.J.Super. at 182-83, 711 A.2d 398, have relevance, and we conclude that those factors provide an appropriate guide for identifying those workers who fit CEPA’s definition of “employee.”

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Our holding is particularly compelled by CEPA’s primary purpose, which is to encourage workers to voice concerns about the unlawful activities of employers and co-workers. CEPA exhibits no particular interest in regulating the terms of the employer-worker relationship, except to preclude retaliation, when the worker acts in the interests of the health, safety and welfare of the public.

The Conscientious Employee Protection Act, NJSA 34:19-1, et seq. (“CEPA”) is a powerful statute, enacted almost 20 years ago, in the State of New Jersey that protects employees who are subjected to adverse employment actions based on taking part in protected whistleblower activity.

CEPA is a specific statute that contains highly scrutinized criteria that must exist for an employee to be successful in presenting a whistleblower claim. The statute includes the following elements:

An employer shall not take any retaliatory adverse action against an employee because the employee does any of the following:

a. Discloses, or threatens to disclose to a supervisor or to a public body an activity, policy or practice of the employer, or another employer, with whom there is a business relationship, that the employee reasonably believes:

(1) is in violation of a law, or a rule or regulation promulgated pursuant to law, including any violation involving deception of, or misrepresentation to, any shareholder, investor, client, patient, customer, employee, former employee, retiree or pensioner of the employer or any governmental entity, or, in the case of an employee who is a licensed or certified health care professional, reasonably believes constitutes improper quality of patient care; or

(2) is fraudulent or criminal, including any activity, policy or practice of deception or misrepresentation which the employee reasonably believes may defraud any shareholder, investor, client, patient, customer, employee, former employee, retiree or pensioner of the employer or any governmental entity;

b. Provides information to, or testifies before, any public body conducting an investigation, hearing or inquiry into any violation of law, or a rule or regulation promulgated pursuant to law by the employer, or another employer, with whom there is a business relationship, including any violation involving deception of, or misrepresentation to, any shareholder, investor, client, patient, customer, employee, former employee, retiree or pensioner of the employer or any governmental entity, or, in the case of an employee who is a licensed or certified health care professional, provides information to, or testifies before, any public body conducting an investigation, hearing or inquiry into the quality of patient care; or

c. Objects to, or refuses to participate in any activity, policy or practice which the employee reasonably believes:

(1) is in violation of a law, or a rule or regulation promulgated pursuant to law, including any violation involving deception of, or misrepresentation to, any shareholder, investor, client, patient, customer, employee, former employee, retiree or pensioner of the employer or any governmental entity, or, if the employee is a licensed or certified health care professional, constitutes improper quality of patient care;

(2) is fraudulent or criminal, including any activity, policy or practice of deception or misrepresentation which the employee reasonably believes may defraud any shareholder, investor, client, patient, customer, employee, former employee, retiree or pensioner of the employer or any governmental entity; or

(3) is incompatible with a clear mandate of public policy concerning the public health, safety or welfare or protection of the environment.